Jurisdiction refers to the right of a nation or state to apply their laws. In relation to the internet the debate is how far this authority can be extended. The border-crossing involved with electronic communication means the internet is essentially a borderless place which needs to be defined as a jurisdiction of its own. Before the World Wide Web the law was designed to deal with physical movement or presence which would determine which law to apply. The internet lacks physical movement making jurisdictional decisions very difficult. The enactment of the Broadcasting Services Amendment (Online Services) Act 1999 has emphasised the problems with internet jurisdiction in relation to the scope of national laws where content based outside Australia is accessible by local residents. The internet allows individuals to cross state and international boundaries in seconds, without noticing the transition, or being aware of the new jurisdiction. It is also unique in that communications by people online are real humans but at the same time can be ‘unreal’ because they can’t be traced to a particular person or place. The traditional way of determining jurisdiction is also difficult conceptually in situations where someone may be sending an e-mail to someone in the same building but the e-mail will travel around the world – passing through many jurisdictions. Regardless of the substantive legal issue in question such as copyright, defamation or privacy - jurisdiction is the dominating issue.
In theory a national Government can extend its jurisdictional powers to apply its laws and regulation to any internet activity in any country. This is because there aren’t physical boundaries preventing them and there are also no laws to govern it. However, the practical enforcement of their laws against foreign people is unrealistic. This is where the concept of ‘extraterritoriality’ is relevant. That is, the circumstances in which a country can apply its laws to events outside its geographical boundaries. Governments traditionally practice common courtesy where states or countries do not apply their laws to people outside their physical jurisdiction unless it is reasonable to do so, thus limiting their jurisdiction. Unfortunately this practice is difficult to gauge in an online environment. There have been cases of governments extending their jurisdictional powers to limit access to information within their own countries from others. “In November 2000, a French court ordered Yahoo! To prevent French citizens from accessing online auctions of Nazi memorabilia that occurred on Yahoo!’s United States servers. Yahoo! Argued that the auctions were protected by United States free speech laws and that the Yahoo! site based in France was free of such auctions. The court was not interested.� (Yee Fen Lim, 2003, p60)
In February this year there was a launch of works at the Supreme Court of Queensland regarding internet jurisdiction. It is an analysis of how Australia, the United State and the European Union are dealing with issues relating to jurisdiction and the internet. To date there are two Australian cases that the High Court has seen that have addressed the jurisdictional issue: Macquarie Bank v Berg and Gutnick v Dow Jones. Macquarie Bank v Berg considers the problem of defamatory material being published on the internet. The judges acknowledged that the problem with granting an injunction was that New South Wales law would be imposed worldwide. The later case of Gutnick v Dow Jones also concerned defamation; however, in this case it was possible to grant an injunction because the material was only available to those subscribers of Dow Jones and for that reason the law would not be forced on other jurisdictions.
The current Australian position is still uncertain due to conflicting decisions; however the Queensland Supreme Court has said that while it is their discretion to make a decision; in regards to administering justice in Queensland they will not refuse their jurisdiction lightly.
Kathryn Badger 09:55, 28 Oct 2004 (EST)
Kathryn Badger 09:55, 28 Oct 2004 (EST)
Kathryn Badger 09:55, 28 Oct 2004 (EST)
To go back to main page click here
Kathryn Badger 09:55, 28 Oct 2004 (EST)
